The judge as activist - Maartje de Visser

Could you describe your research?
I am involved in the European and National Constitutional Law (EUNACON) project. This is a four-year EU financed project, led by professor Monica Claes and comprised of three other colleagues in the law faculty. We examine fundamental constitutional principles in ten Member States and in the EU.

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The European treaties and case law of the Court of Justice talk about ‘common constitutional traditions and principles’, but puzzlingly enough, no-one has studied what these traditions and principles are in all Member States and whether they are actually common. We focus on four themes: I’m responsible for the topic ‘constitutional review’.

The constitution is the supreme law in each country and it is fundamental that other laws fit within the constitutional framework. But who ensures this? The German constitutional court, for instance, acts as the guardian of the German constitution. In the Netherlands, judges cannot check laws against the Dutch constitution; this is the task of the Senate and the Council of State. Amongst others, I examine how laws are assessed against the constitution in ten Member States and the EU.

After this project is completed in September 2012, I want to explore the relationship between judges and legislatures in more detail. This is something I am already doing a bit at this moment. Take the phenomenon of ‘judicial activism’. Constitutional courts sometimes take decisions that others believe are actually the responsibility of politicians. I find it interesting to examine what the role of judges is in different Member States and what we believe this ought to be.

Why are you doing this research?
Pushing the boundaries of my knowledge from fresh perspectives keeps me sharp and intellectually curious. For example, while I tackle questions of legitimacy and the role of the judge in my current research as well as in my dissertation, I approach the topic differently and the fields do not overlap significantly. I find it interesting to deal with a variety of salient legal issues, but they always feature a European or institutional dimension.

How do you do this?
With a lot of reading. I do not just read books and articles by authors from the various Member States, but also primary sources such as constitutional texts or decisions by constitutional courts. In addition, I study the websites of the various constitutional courts, and we’ve had yearly visits from a taskforce of experts from the country that we research coming to Maastricht. It’s very helpful to present your work to experts from the country itself, who can fill you in on the latest developments.

What is the societal relevance of your research?
We are engaged with the major constitutional questions, that at national and at European level determine the organisation and functioning of every country and the EU. The constitution is the basis of our society and judges are for instance becoming increasingly important in making sure this is respected. How do we make sure that the constitutional system serves its citizens optimally?

In addition, the wealth of information garnered will be made public. This is an important societal contribution since legal systems are increasingly interconnected and judges for instance engage in dialogues with each other. There is for example no book which sets out all the competences of constitutional courts in the various Member States. So we also make a contribution in this way. It is good to know what happens across the borders in a certain area and what you can learn from that as a Member State or as the European Union.

How multidisciplinary is your research?
It of course has a strong legal dimension, but we do examine the issues in their social and historical context. Think of the genesis of various constitutional courts. And there is a fair amount of political science literature that is analysed and integrated.

The theme of the Dies is ‘Inspired by quality’. Who or what inspires you?
A key motivation lies in the fact that I grapple with new areas of research whilst building on what I already know. My one constant since my studies here at Maastricht University is the European dimension of law. I draw great inspiration from interaction within the law faculty: talking with each other about research feeds your own work. And I very much enjoy transferring knowledge. It is not that I know everything, but it gives me a great satisfaction knowing I have been able to further my students’ understanding of the law.

Why did you choose to carry out this research at this university in particular?
Our research group came from Tilburg to Maastricht in September 2010. I studied in Maastricht but I did my PhD in Tilburg and worked there for six years, so while I sometimes feel like I never left Maastricht, I also reflect fondly on the memories and friendships made during those days. As far as the content of our research is concerned, Maastricht provides a unique and attractive environment to conduct it. One of the faculty’s main strengths is comparative law, the Maastricht Centre for European Law is the largest in the Netherlands and one of the largest within Europe, and the Montesquieu Institute is prominent in the field of constitutional law. It is beneficial to have our research embedded in this way.